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UPDATE: Pakistan: Transgender couple released on bail

On 28 June 2007, the Supreme Court of Pakistan issued orders to release Shamial Raj and Shahzina Tariq on bail on a security bond of Rs 50,000 each. However, the jail authorities have not released the two as yet.

The two member bench comprising Acting Chief Justice of Pakistan Justice Rana Bhagwan Das and Justice Sardar Raza suspended the Lahore High Court’s three-year imprisonment order issued earlier and accepted the appeal for a regular hearing.

Advocate Dr Babar Awan, representing Shamial Raj and Shahzina Tariq, pleaded before the court that the law in Pakistan does not restrain two women from living together. He further pleaded that it is every individuals’ prerogative to decide whether he/she wants to undergo physical examination. In this respect, the test to determine Shamial’s sex was in violation to his inherent rights.

The jail authorities are not complying with the court order; maintaining that Shahzina’s must return to her parents, disregarding the fact that her father Tariq Hussain is a direct threat to her life. The authorities also maintain that Shamial cannot be released because his life is threatened.

Women's rights activists supporting Shahzina and Shamial are concerned about their safety and security. They urge the state authorities to ensure the security of the two of them, and under the present circumstances they must also be guaranteed police protection upon their release from jail.

Shamial, a resident of Faisalabad, Pakistan, had a sex change operation and has been living as a man for years. He and Shahzina Tariq married for love last year, despite the fact that Shahzina's father, Tariq Hussain, had wanted her to marry a person to whom he owed money.

Hussain and other family members continued to harass the pair and took legal action against Shamial accusing him of kidnapping their daughter, despite the consensual nature of their marriage. On the 28th of May, 2007 the Lahore High Court decided there was insufficient evidence to charge Shahzina and Shamial under section 377 (unnatural offences). However the couple was sentenced to three years imprisonment on lesser charges.

Despite sensationalistic media reports, at no point have Shamial and Shahzina been charged or tried for ‘lesbianism’ or for the legitimacy of their marriage. The law in Pakistan is silent on such relationships and defines no penalties. The question of Shamial's gender and sexuality only arose after the couple had engaged with the legal system in order to end the harassment by Shahzina's father, who had wanted to marry her off to settle a personal debt.

Despite the marriage, or because of it, Tariq Hussain and the rest of Shahzina’s family continued to harass them and filed several charges against Shamial Raj for kidnapping his daughter and for a number of offences such as fraud.

The two of them then approached a lower court in Faisalabad to prevent such harassment. The lower court decided in their favour since they produced their marriage certificate and because both of them were adults.

Shahzina and Shamial then came to Lahore and found a lawyer, Rana Sajjad Hussain, Advocate High Court, to file a writ petition on their behalf to the High Court to end such harassment. The case was put before Kh. Mohammad Sharif, Judge of the High Court. The first hearing was set for the 3rd of May 2007. On the 4th of May the father of Shahzina appeared before the Court and gave testimony that Shamial was actually a woman.

Shahzina and Shamial did not come to this hearing “because”, their counsel submitted, “they had been threatened the previous night and thought they may be murdered if they appeared in court”. The Judge ordered a physical examination to be done by a five member medical team at the government Services Hospital. The report was to be submitted on the 8th of May.

The medical team reported that while Shamial “is a well built muscular person with moustache and beard and has a hoarse voice” that physically he is a woman. They did however propose additional tests. This report changed the nature of the writ application turning the complainants into defendants. Frightened, the two went into hiding. When they didn’t appear on the 9th the Judge ordered the police to arrest them on the grounds that Shamial had stated in Court that he “was a boy” but that the medical examination had proved that he was “a girl” and that therefore he has sworn a wrong affidavit.

During his physical examination and later in Court Shamial has admitted that he was a woman. The Court gave notice under Section 193 of the Pakistan Penal Code (perjury) for both Shamial and Shahzina to show cause as to why they should not be prosecuted under this section.

Shamial was born a female. However he maintains that he feels like a man trapped in a woman’s body. At age 15 he started developing breasts and growing a beard. He got a mastectomy done in Faisalabad by a medical team supported by a psychologist. In 2006 he decided also to have a hysterectomy.

Shahzina and Shamial ‘disappeared’ after the Court order on the 9th of May. Having missed two hearing of the High Court the Judge issued non-bailable arrest warrants for them. They were arrested by the police soon after and Shamial was interned in the Kot Lakpath jail in Lahore while Shahzina was sent to the Central jail in Faisalabad. They were produced in Court on the 22nd of May.

The Judge asked them to show cause why they should not be charged under PPC193 (perjury) and section 377 (unnatural offences). The Court directed them to do this by the 25th of May. Since their lawyer Mr. Rana Sajjad Hussain, was not allowed by the jail authorities to meet with them he requested the Court to enforce his clients’ rights to counsel and asked for further time in which he could consult with them. The Court gave him time until the 28th of May.

Under section 193 of the PPC (which gives a sentence of up to 7 years) the charges are framed and decided immediately. Charges for section 377 of the PPC, goes for trial. At no point have they been charged or tried for ‘lesbianism’ and nor for their marriage. The law in Pakistan is silent on such relationships and defines no penalties. On the 28th of May the Court decided that there was insufficient evidence to charge Shahzina and Shamial under section 377 (unnatural offences) and while there were circumstances under which perjury was committed it would still give (a lesser) sentence on that charge. Yet they were given 3 years each.

This case highlights the question of gender identity. Shamial insists that he is a man and Shahzina believes that he is one. The Judge referred to this as an unprecedented case as indeed it would be in most parts of the world.